As a general matter, employers are required to pay one and a half times a worker’s ordinary rate for every hour worked in excess of forty per week, unless the worker is exempt from overtime pay. There are several types of jobs that are commonly misclassified for the purposes of unpaid overtime. One such job is that of an inspector. Inspectors are commonly used in the oil and gas, construction, food and drug industries, and are often required to work long hours.
Inspectors are sometimes told that they are not entitled to overtime pay because they are subject to the administrative exemption under the FLSA. To qualify for the administrative employee exemption, all of the following tests must be met:
- The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $455 per week;
- The employee’s primary duty must be the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers; and
- The employee’s primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.
The Department of Labor has enacted regulations under the Fair Labor Standards Act that discuss the application of the administrative exemption to several commonly disputed job titles. The DOL’s unpaid overtime regulations state that ordinary inspection work does not meet the duties requirements of the administrative exemption. If the inspector’s job simply requires inspecting and reporting, particularly where the inspector uses well-established techniques and procedures that are catalogued and described in manuals or other industry sources, it is likely that the inspector is not exempt and is due overtime pay. See 29 C.F.R. § 541.203(g). Thus, as a general matter, pipeline inspectors in the oil and gas industry are due overtime pay. Pipeline inspectors working in the oilfields are among many oilfield workers that are misclassified and improperly denied overtime pay. Similarly, public-sector inspectors or inspectors or investigators reviewing fire prevention or safety, building or construction, health or sanitation, or environmental issues, typically do not meet the administrative exemption and are typically required to receive overtime pay. See 29 C.F.R. § 541.203(j).
Employee misclassification is rampant in the oil and gas and construction sectors, and there are almost certainly many inspectors and investigators who inspect construction sites, pipelines, or oil drilling rigs that are due overtime pay. Pipeline or oil rig inspectors in the Permian Basin, the Barnett Shale, the Haynesville Shale or the Eagle Ford Shale areas, where oil and gas production is heavy and employees are being required to work long hours, deserve to know whether their employers are complying with federal and Texas overtime laws. Inspectors or investigators who believe they may have been misclassified and may be owed unpaid overtime should consult with an experienced overtime pay attorney as soon as possible in order to protect their legal rights.
About the Author: Josh Borsellino is a Fort Worth based attorney that is licensed to practice law in every state and federal court in Texas. If you are an inspector, particularly one in the oil and gas or construction industries, and have questions about whether you are entitled to unpaid overtime, call attorney Josh Borsellino at 817.908.9861, or fill out the online form. There is no charge for an initial evaluation of your matter, and cases are typically handled on a contingency basis, meaning that if there is no recovery, the client owes no money to the Law Firm of Josh Borsellino.